DIVISION OF REVENUE STANDOFF

Senate should blame the Constitution for its limited mandate, not National Assembly

Kenyans had good reasons to limit the legislative authority of the Senate to participate in lawmaking functions of Parliament to the extent prescribed

In Summary

• The respective functions and roles of the Houses of Parliament are prescribed in Article 95 for the National Assembly; and, Article 96 for the Senate. As can be seen, the choice of words in the said provisions is careful and deliberate.

• In terms of its legislative mandate, Article 109 gives power to the National Assembly to introduce and consider any Bill. Such is the unlimited legislative mandate of the National Assembly that it can legislate on any matter under the sun.

County Governors led by CoG Chairman Wycliffe Oparanya speak outside the Supreme Court after lodging a case seeking the apex court's intervention in unlocking the current impasse on the Division of Revenue Bill 2019 on July 15, 2019.
County Governors led by CoG Chairman Wycliffe Oparanya speak outside the Supreme Court after lodging a case seeking the apex court's intervention in unlocking the current impasse on the Division of Revenue Bill 2019 on July 15, 2019.
Image: JAMES MBAKA

Last week, the Senate threatened went to the Supreme Court challenging some 24 pieces of legislation enacted by the National Assembly, claiming it disregarded the Constitution while enacting the said laws.

At once, one would be forgiven to ask why a House of Parliament would sue Parliament! At another level, a legitimate question arises as to why the Senate decided to sit on the court action it now threatens several years and months after it enacted the said laws, if it is indeed proceeding in good faith.

While I do not intend to comment on the politics of this matter, it is necessary that an examination of the relevant provisions of the Constitution is undertaken to clarify the mandates of these two Houses.

Article 93 of the Constitution establishes the Parliament of Kenya consisting of the National Assembly and the Senate. Under Article 93(2), the National Assembly and the Senate “shall perform their respective functions” in accordance with the Constitution.

Article 94 provides for the general roles of Parliament. In particular, this provision states that the legislative authority of the Republic of Kenya is derived from the people and, at the national level, is vested in and exercised by Parliament. This manifests the diversity of the nation, represents the will of the people and exercises their sovereignty.

The respective functions and roles of the Houses of Parliament are prescribed in Article 95 for the National Assembly; and, Article 96 for the Senate. As can be seen, the choice of words in the said provisions is careful and deliberate.

On representation, while Article 95(1) is specific that the “National Assembly represents the people of the constituencies and special interests; Article 96(1) affirms that the “Senate represents the counties, and serves to protect their interests and their governments.” And so, while an MP in the National Assembly represents the people and special interests, a senator represents a county as an entity.

It is for this reason that all members in the National Assembly vote individually on every matter before the House, as against the procedure in the Senate, where voting is by way of county delegations in all matters concerning the devolved units.

The nominated senators do not vote on all matters concerning counties, except as delegates of the respective county heads of delegation and strictly as directed.

 

On the exercise of legislative authority, Article 95(3) states that the “National Assembly enacts legislation” in accordance with the Constitution, while Article 96(2) stipulates that the “Senate participates in the law-making function of Parliament by considering, debating and approving Bills concerning counties” in accordance with the Constitution.  

At once, the Senate has no power to enact legislation, even where the same concern counties. Even Bills touching on counties and their governments must be referred to the National Assembly to be enacted into law upon being considered, debated and approved by the Senate. The import of this is that any Bill passed by the Senate, which is not approved by the National Assembly is dead.

In terms of its legislative mandate, Article 109 gives power to the National Assembly to introduce and consider any Bill. Such is the unlimited legislative mandate of the National Assembly that it can legislate on any matter under the sun.

Unlike the National Assembly, which enjoys original, unlimited and unmitigated legislative authority as aforesaid, the legislative role of the Senate is restricted to participating in the lawmaking function of Parliament over Bills concerning the counties.

The Senate cannot introduce or consider Bills that do not concern county governments. The Senate cannot originate Money Bills, meaning Bills that require the expenditure of public funds for their implementation.

Whilst Article 95(4) of the Constitution provides that the “National Assembly determines the allocation of national revenue between the levels of government; appropriates funds for expenditure by the national government and other national state organs and; exercises oversight over national revenue and its expenditure”, Article 96(3) prescribes that the “Senate determines the allocation of national revenue among counties, and exercises oversight over national revenue allocated to the county governments.”

In simple terms, the Constitution locates legislative authority for the enactment of the Division of Revenue Bill in the exclusive domain of the National Assembly; and, reserves to the Senate participation in the enactment of County Allocation of Revenue Bill.  

In addition to the specific roles hereinabove, the National Assembly has additional roles under Article 95(2) to “deliberate on and resolve issues of concern to the people”; under Article 95((5) to review the conduct in office of the President, the Deputy President and other state officers and to initiate the process of removing them from office; to oversight state organs; and, under Article 95(6) to approve declaration of war and extensions of states of emergency.

Furthermore, under Article 107, the Speaker of the National Assembly, as the ultimate head of the institution of Parliament, presides at joint sittings of the Houses of Parliament. And under Article 146, where the office of the President falls vacant and the Deputy President is unable to assume office, the Speaker of the National Assembly takes over until a substantive President is elected.

The argument by the Senate that it has to participate in the lawmaking function of Parliament when the Division of Revenue Bill is enacted into law is hollow and lacks constitutional anchor. Not even a decision of the courts, whether advisory or otherwise, can share out to the Senate legislative jurisdiction over the Division of Revenue Bill. Courts interpret the Constitution and the laws; they do not make and cannot rewrite the Constitution.

The position advocated by the Senate that any law that concerns the people or relates to sectors which are partly devolved must be referred to the Senate for approval is also without basis, so far as such legislations do not affect the devolved part of the functions.

For instance, a legislation on health restricted to national referral facilities and health functions vested strictly in the national government does not invite the participation of the Senate. So is the case with functions relating to the provision of water, agriculture, education, roads and other matters reserved to the national government.

Kenyans had good reasons to limit the legislative authority of the Senate to participate in lawmaking functions of Parliament to the extent prescribed. The Senate must keep to their province or seek a referendum to have the people expand its legislative authority.

The decision by the people to locate the Division of Revenue Bill in the National Assembly was deliberate and for sound reasons. Absent enactment of the Division of Revenue Bill, revenue cannot be shared between the national and the county governments, with the direct consequence that the two levels of government collapse for lack of appropriation and financing!

Kenyans, no doubt, could not expose the Division of Revenue Bill to the vagaries of disagreements and unyielding mediation by the Houses of Parliament.

The Senate is better advised to keep to its constitutional lane and stop encroaching the legislative space of the National Assembly. It should blame the Constitution and Kenyans not the National Assembly, for its limited mandate.

  

Kaluma is Homa Bay Town constituency